MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           20 SEPTEMBER 2001
	DOCKET NUMBER:   AR2001059114

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Kenneth W. Lapin		Member	
	Ms. Paula Mokulis		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his 1979 discharge be reviewed.  He states, in effect, that his initial period of active service was characterized as honorable but he received a bad conduct discharge while undergoing training during his second period of active duty.  He notes that he was not court-martialed.  The applicant states he "was having PTSD problems” and “was very ill at [the] time.”  He states that may have contributed to his discharge.  He states that he has undergone counseling at the VA for the past 16 years and “would like to resolve this.”  He submits no evidence to support his request.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

He served an initial period of active duty between 1968 and 1969.  He was released from that initial period of active duty with an honorable characterization of service.

He reenlisted in February 1979.  In July 1979 the applicant’s unit commander recommended the applicant “be separated from the service by voiding his enlistment.”  The commander cited the applicant’s concealment of “the fact that he had been treated for severe mental emotional problems” and that he “was treated as an outpatient at the Cincinnati VA Day Hospital” as the basis for his recommendation.  

The commander’s recommendation was approved on 10 July 1979.  The approval authority directed that the applicant’s enlistment be voided.  He noted the “reason and authority for voidance is Section II, Chapter 14, AR 635-200….”

The applicant’s enlistment was voided on 11 July 1979.  His service was not characterized.  He was not issued a discharge certificate.

Army Regulation 635-200, Chapter 14, then in effect, authorized designated commanders to “void fraudulent enlistment/reenlistments when the service of the member is of too short duration to properly apply establishment standards for award of an honorable, general, or an under other than honorable discharge….”

The applicant did not receive a bad conduct discharge in 1979.  His enlistment was voided.  There is no evidence, and the applicant has not provided any, which would serve as a basis to issue him a discharge certificate or characterize his brief period of military service in 1979. 
Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 11 July 1979, the date applicant’s enlistment was voided.  The time for the applicant to file a request for correction of any error or injustice expired on 11 July 1982.

The application is dated 20 June 2001 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.  Prior to reaching this determination the Board looked at the applicant's entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

_RJW___  __KWL__  __PM ___  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2001059114	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010920	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	142.00	
2.		
3.		
4.		
5.		
6.